Diaz v. Liman

• Court: District Court, S.D. New York
• Decided: August 29, 2025
• Docket: 1:25-cv-07103
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MIGUEL DIAZ, Plaintiff, 25-CV-7103 (LTS) -against- ORDER DIRECTING PAYMENT OF FEE OR IFP APPLICATION AND PRISONER LEWIS J. LIMAN, AUTHORIZATION Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is currently incarcerated at United States Penitentiary Lee in Jonesville, Virginia, brings this action pro se.1 To proceed with a civil action in this Court, a prisoner must either pay $405.00 in fees – a $350.00 filing fee plus a $55.00 administrative fee – or, to request authorization to proceed in forma pauperis (“IFP”), that is, without prepayment of fees, submit a signed IFP application and a prisoner authorization.2 See 28 U.S.C. §§ 1914, 1915. If the Court grants a prisoner’s IFP application, the Prison Litigation Reform Act requires the Court to collect

1 Plaintiff originally filed this action in the United States District Court for the Western District of Virginia. See Diaz v. Liman, No. 7:25-CV-0563 (W.D. Va. Aug. 26, 2025). By order dated August 26, 2025, the Western District of Virginia transferred this action to this court. (ECF 2.) 2 Plaintiff characterizes his submission as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (ECF 1, at 1.) However, the relief he seeks – money damages and an order vacating his federal conviction – is not available under Section 2241. See Preiser v. Rodriguez, 411 U.S. 475, 494 (1973) (money damages are not available in a habeas corpus proceeding); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (“A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction.”). Any challenge to Plaintiff’s conviction must be brought as a motion for relief under 28 U.S.C. § 2255. See Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001) (Section 2255 is “generally the proper vehicle for a federal prisoner’s challenge to his conviction and sentence[.]”). Because Plaintiff recently brought a Section 2255 motion, and that motion was denied as premature, see Diaz v. United States, No. 25-CV-5428 (LJL) (S.D.N.Y. July 18, 2025), the Court declines to construe this submission as a motion for relief under Section 2255. the $350.00 filing fee in installments deducted from the prisoner’s account. See 28 U.S.C. § 1915(b)(1). A prisoner seeking to proceed in this Court without prepayment of fees must therefore authorize the Court to withdraw these payments from his account by filing a “prisoner authorization,” which directs the facility where the prisoner is incarcerated to deduct the $350.00 filing fee3 from the prisoner’s account in installments and to send to the Court certified copies of

the prisoner’s account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b). Plaintiff submitted the complaint without the filing fees or a completed IFP application and prisoner authorization. Within thirty days of the date of this order, Plaintiff must either pay the $405.00 in fees or submit the attached IFP application and prisoner authorization forms. If Plaintiff submits the IFP application and prisoner authorization, they should be labeled with docket number 25-CV-7103 (LTS).4 No summons shall issue at this time. If Plaintiff complies with this order, the case shall be processed in accordance with the procedures of the Clerk’s Office. If Plaintiff fails to comply with this order within the time allowed, the action will be dismissed.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf.

3 The $55.00 administrative fee for filing a civil action does not apply to persons granted IFP status under 28 U.S.C. § 1915. 4 Plaintiff is cautioned that if a prisoner files a federal civil action that is dismissed as frivolous or malicious, or for failure to state a claim on which relief may be granted, the dismissal is a “strike” under 28 U.S.C. § 1915(g). A prisoner who receives three “strikes” cannot file federal civil actions IFP as a prisoner, unless he is under imminent danger of serious physical injury, and must pay the filing fees at the time of filing any new action. Coppedge v. United States, 369 U.S. 438, 444–45 (1962) (holding that appellant demonstrates good faith when seeking review of a nonfrivolous issue). SO ORDERED. Dated: August 29, 2025 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge